Re: Blackboard Patents

Worse than evil, they don't make any intellectual sense. Process patents are the worst. How can someone patent an idea like reverse auctions if the underlying technology of the IP packets wasn't there first.

Re: Blackboard Patents

One of the problems with Software Patents (and perhaps patents in general), is that even if there is obvious prior art, the smaller market players will find it hard to defend any "infringement" legally.Thus it puts up an artifical barrier to entry into the market. This of course is an even greater discouragement to open source development where the budget for the legal department tends to be somewhat minimal.

Re: Blackboard Patents

I'm sure we will all stand by Moodle if it comes to that and I'll be the first one to donate to a Moodle defense fund if established. Right now I would really like to know more about the possible dangers regarding this patent, to us Moodle users and also other LMS players out there. My believe is that we will not stand alone if Blackboard decides to aggressively use this patent and attack other vendors and developers.

Blackboard filed the patent in June 2000 when the "threat" of open source LMS systems was not as apparent as it is now. So I'm not so sure it was aimed at open source systems at the time it was filed. Besides there are numerous proprietary systems competing with Blackboard. A recent survey on the LMS market from Bersin & Associates analyses 22 vendors, none open source as far as I can tell. It will be very interesting to hear their reactions to this recent development.

Re: Blackboard Patents

It would be nice to think that they didn't go after Moodle intentionally, but the fact that they already have it patented in Australia and New Zealand before Europe and other large nations is a little fishy. Maybe the patent process is quicker in those countries, but it still looks suspicious.

This, to me, is almost equivalent to Microsoft trying to patent the concept of a web browser. If they did that, they would have gotten hit with a lot (more) anti-competition monopoly charges. Surely, there has got to be some place that we, as a Moodle community, can file complaints about this patent. Certainly, it crosses the line. Just look at the first line of the abstract:

"A system and methods for implementing education online by providing institutions with the means for allowing the creation of courses to be taken by students online"

If ANYONE doubts the fact that BlackBoard is afraid of competition, and you weren't convinced by the fact that they have a habit of purchasing any competitors (WebCT was not the first), then this should prove something to you now.

I've always thought that the "merger" of BlackWeb smacked of something sinister. I wonder if they used this patent as leverage to "convince" WebCT to sell out.

Re: Blackboard Patents

It seems that WebCT was not the first competitor that Blackboard have bought out. Blackboard itself was only founded in 1997, but appears to have bought out a previously founded company, Mad Dog (Duck?) Enterprises and their product Web Course In A Box in 2002, and merged with CourseInfo (Cornell University) in 1998.

I suspect that Blackboard is sueing Desire2Learn as an "easy victim" - they'll drain D2L of financial reserves and establish a legal precedent that they can use in subsequent cases against other entities.

Re: Blackboard Patents

Since this is the social forum, as Dame Edna is fond of saying "I mean this in only the best possible, kindest way..."

Let us not be looking under every rock for the bad guys and gals who may or may not be in our midst. As I think somebody pointed out in this thread already, when some of us start looking over our shoulder, it is a good way to crash into the obvious.

Do we think open source Moodle is driving the cutting edge trends? Which suggests that the mega corp will need to catch up to rear end us. There is always the copyright counter attack. Where somebody claims that Blackboard has been knocking off the look and feel of the leader's product for years.

Yeah it is all about the money. It is a good thing Uncle Bill does not have a product or combination of products that could be construed to violate the Blackboard patent(s).

Re: Blackboard Patents

"It is a good thing Uncle Bill does not have a product or combination of products that could be construed to violate the Blackboard patent(s)."

What really matters is if a judge will decide to hear a case. It doesn't matter if any LMS decides they don't violate this patent. It only matters if a judge decides to hear the case, and send the claim to (a potentially expensive) trial. Many a corporation have folded in the face of a possible trial, even ones that they knew they could win, just because of the threat of a lawsuit by a powerful corporation.

My experience has been that the bad guys will come up and bite you in the bum if you aren't looking under every rock for them.

If you do a News search, you will see that this patent was recently announced by Blackboard. When is the last time you ever heard of a company announcing they received a patent for a product that has been around for years? Yeah, those companies that were ready to kick butt on their competitors. I think we would be wise to take notice.

Re: Blackboard Patents

My institution doesn’t use a Blackboard system but uses a competitor’s course management system. How are we affected? Evaluating patents can be complex and because we don’t know the specifics of how your system works, we would encourage you to consult with your CMS provider for answers.

That does sound rather alarming. Reminds me of the whole Acacia thing over streaming content. . .

Re: Blackboard Patents

I spotted that line to, sounds like a great big dollop of FUD to me. If University X pops its head up as thinking about swapping to Moodle then BlackCT smirk to themselves as they say 'you do know we hold the patents to the VLE, would you want to swap to a system we might sue out of existance?'

It may be more valuble to them as a big stick to wave around rather than actually using it and running into trouble as its not a patent they can defend.

Re: Blackboard Patents

After a long time of absence at moodle.org I have stumbled by coincidence on this thread.

Well, I was shocked to see that it is now going towards the patent stuff On the other hand... probably it's one more of those "cases" that are needed to finally crash the whole patent industry worldwide and send all those patenting bastards to hell!

Why are still so many of us cowardly passive against a system that allows people to externalize costs, privatize earnings, monopolize knowledge (even if it is produced by others or doesn't "belong" to anyone), squeeze every buck out of others, etc. How dumb are we?

Are some of us, even speculating to become suddenly also winners on their sides? Are some just quiet in order to not put at risk their job, not to get in troubles? Most of us are living in democracies, so WE define how the world looks like in which we are living...

Btw, one of their strongest weapons is, that people tend to rather like to solve an "isolated problem" (let's say: Moodle isn't threatened by Blackboard patents) than to consider the entire problem.

Re: Blackboard Patents

Yes software patents are evil, and we could even widen this range to other fields such as genetics and so on. Open source and free software are the solution because there is no company to sue, there are only integrators. So frag them all!!!

Rigth now I'm writing my phd thesis (whish me luck!!!) about E-learning and sutainable development, and this case has just openend one chapter I din'nt think about. If E-learning can be a key tool to empower human development and sutanibale debelopment (that sure is!) software patents can be a way to stop it fro being so. Like all alternative energy technologies to oli have been delayed at least 20 years cause somebody bought in time the patents just to slow them down...

Re: Blackboard Patents

I don't actually think anything will happen, because all enforcement will do is make Blackboard look like the bad guys. I believe the announcement is a PR thing right now so they can gauge market reactions and get some free exposure on the news wires.

If we do need to, though, you can bet your Assignments that there WILL be an LMS/CMS/VLE Defense Fund set up to fight it (for not just Moodle, but the 100 or more other systems and thousands of developers this action would be affecting).

I am totally not worried about this, everything is fine. So please don't panic everyone!

Re: Blackboard Patents

Well, maybe you should ask a patent for the still fantastic graphical overview of a course with resources and activities organised in sections and with the outline-function as visual refinement, all on one page...

Re: Blackboard Patents

I'm with Martin. Going after Moodle, or for that matter any oter LMS system would hurt their own reputation more than help them.

The fact is it sounds pretty much like they have tried to patent a concept(LMS) rather than a specific technology or process. I can't believe they were able to do this. I understand a need to protect intellectual copywrite. The ability to protect ones own invention is paramount to truning it into a succesful venture. But if I was to invent a new rasberry flavoured fizzy drink and patent softdrinks as a whole..I would be laughed out of the room. But sadly this is what looks like has happended here. Blackboard are more than entitled to protect their intellectual property...and god help anyone who copies their system, but geee..if they tried to attck the other wide range of LMS's with different methodologies, technologies and design..I cant really see them holding this up.

So,let's just see what happens, And in the meantime Im off to patent 'stupid ideas'. Ill make a fortune off that one

Re: Blackboard Patents

Nathan Boddington VLE dates from the 90's and is added, I found a good potted history (see the wiki) but I can't find precise dates. I've emailed them to ask.

I asked my Dad (patent attorney - makes for some interesting family dinner conversations
) what searching he thinks the patent granters would have done to enable the patent, he says they do try to look outside their own index of patents for information on prior art but that they tend to rely on their index quite a lot. So collecting this information (I'd never heard of Mallard) could be very useful.

Re: Blackboard Patents

I dropped in WOLF/Learnwise which we've used for years just to add to the timeline.

As an aside my secondary school had a few commordore PETs and I remember taking a test which was marked by the tutor centrally back in 1984 ish. I think we had to save our results on 5.25" floppys or cassette or something and hand them in. Not quite networked VLE, but going in the general direction.

Re: Blackboard Patents

I remember rolling out the OnLiNM VLE (which was the predecessor to Nathan Boddington) at work. This would be about 1997-1998. It was hosted at Leeds University, so maybe someone from there can provide precise dates.

Re: Blackboard Patents

You might also consider contributing any documentation you generate regarding Moodle or any other systems members in the Moodle community may have had a handing in developing to the wikipedia entry on the history of virtual learning environments.

Re: Blackboard Patents

May I suggest that anyone who is going to, or already has contributed to the wikipedia "History of virtual learning environments" page also add appropriate references to books or journals that clearly document their prior art.

As an example I have documented the relevant references for the Omnium Project in 1999 on that page:

Re: Blackboard Patents

Part of the work a defence community will need to do involves a fairly involved analysis of each product to document its counter-claims in prior art against each itemised claim in the patent documentation. Documented references are the first step, but it's certain we'll need volunteers to help with this more detailed analysis soon.

Re: Blackboard Patents

Well, I don't know if it can be done independently of D2L's case, but the Chronicle of Higher Education article made a point that D2L had not yet decided whether to fight the case based on prior art or on the grounds their system was different from the patent specifications. If they go the latter route, they probably are on their own in proving that.

One such function developed by the company is the ability of a single user to access multiple courses under different roles. For example, graduate students are able to access classes for which they are teaching assistants and classes they are taking as students

Graduate students have been teachers in some classes and students in others for centuries. The need for this would be immediately obvious to ANYONE implementing an on-line course management system, and in fact that capability is present in EVERY such system I'm familar with. I'm pretty sure that even the 1960s era PLATO system had that capability, and I'm positive that Mallard did.

Re: Blackboard Patents

Maybe BB can do that today, but when they filed the patent they hadn't thought of that yet. Roles were predefined for each person and while it said there were multiple roles-admin, teacher and student-it doesn't say in the patent that a single person could have more than one role.

Re: Blackboard Patents

It would be worth checking this with a patent attorney (which I am not), but as the US operates a post grant objection system I believe the patent they are showcasing can still be objected to (up to nine months from the date of issue, I believe). If they are actually going to try to enforce this patent I am guessing they may wait for that deadline to pass first. There is also a very high chance that their patent portfolio is there for the purpose of attracting investors (or a buyer) and that they will not be overly keen to test out the validity of their own patents. Whatever their intentions, a detailed wiki giving a timeline of what happened when is definitely a very good idea.

Re: Blackboard Patents

the more dangerous part of all this is not now but its after BB/webct will be gone belly up. at that point sharks are comming in and buying the rights for a song and the they sue everyone and their grandmothers... look ate the mess with JEPG or even the SCO guys.

Re: Blackboard Patents

Well, so much for thinking it would be a while before they decided to enforce the patent. I've just received a copy of the letter Desire2Learn has sent to their users about being sued for patent infringement by Blackboard.

I've attached it here (apologies in advance for a long post)

Hi Everyone,

For those of you attending the Desire2Learn Users Conference today in Guelph this will be redundant information. For those of you not attending, we are sorry you are not here but we wanted to share some information with you in the spirit of our company's historical and ongoing collaborative approach with our clients.

On Wednesday, July 26, Blackboard Inc. issued a press release about a patent that was issued to them by the U.S. Patent & Trademark Office. That day, Blackboard Inc., a Washington, D.C. corporation, filed suit against Desire2Learn Inc. in the U.S. District Court for the Eastern District of Texas, alleging that Desire2Learn is infringing on the patent Blackboard announced that day.

We are disappointed that Blackboard turned to the court system before discussing its claims with us. We intend to defend the action vigorously, but because we just received notice two business days ago, we are unable to comment further at this time. Please understand that due to the nature of litigation some information can not be provided at this time. We pledge that as we are able to provide additional clarity on this matter, we will share information with all of our clients.

Given the current U.S. litigation climate, patent actions are not unusual. While the matter is serious and will require our attention, it will not affect our day-to-day business, product roadmap, attention to client success, or future directions. We have established a team to address strategy and develop an action plan.

We remain confident in our market leadership through continuing innovation and differentiation; superior client support and service; track record of growth; marquee client list (as is evident here at our conference), and extraordinary employees.

Thank you again for your continued commitment and support. As the litigation progresses we may ask you for to provide certain information and we hope you will consider cooperating if we do so.

Should you have any questions please direct them to Jeremy Auger (COO), John McLeod (Director of Marketing), Diane Lank (Internal/US Counsel), or myself.

Our plans here at the Users Conference have not changed; we know this will be our best Users Conference to date given the incredible number of attendees, superb speakers, schedule of informative and fun events, and wonderful host/venue.

Re: Blackboard Patents

I remember working with UMUC on an elearning product called Webtycho
The link provides the history of Webtycho
http://tychousa2.umuc.edu/help.nsf/htmlmedia/History.htmlAs a University professor I got involved in elearning testing almost all the elearning systems from 1980.
I remember at the earliest point of time WebCT and Bb approached us for beta testing their versions before going to the market.
During 1999-2000 I engaged coders, commissioned and deployed an elarning framework for my University.
I will search my files to get the earlier correspondence we had with Bb
I am to proclaim that elearning is organic (mental process) and Moodle is costructional and not a mechanical process.
I dont know whether Patent will cover the mental process.
I still remember an article where how the patent office refused to patent a graduate student's graduate project work training of pigeopns to do quality checking in a pharma industry and the Patent refusal was based on the fact that it is a mental process and not a mechanical process.

With regard to patenting a mental process, I used to tell my students that you can't patent an idea but now it seems you can. One of the first was Amazon's "one-click" patent. Although it is under review because a teacher from New Zealand challenged it on the basis of an earlier patent that was issued for essentially the same thing. See http://arstechnica.com/news.ars/post/20060519-6872.html. This gives us hope.

Re: Blackboard Patents

Nagarajan, I thought I'd mention that WebTycho is still alive and strong throughout the consortium of public Maryland universities. It's used as the primary e-learning tool here at the University of Baltimore.

Re: Blackboard Patents

Well, I started teaching my first online course, designed entirely by me, 16 days before they filed their patent request on June 30, 1999. One or two others had taught online courses through my institute a couple years previous to that as well. Here's a partial screenshot of the advertisement for the course. I still have the entire advertisement and the course files somewhere. I plan on running an updated version of it again using Moodle.

Re: Blackboard Patents

What a shock ... it's filed in Beaumont, Texas. One thing they sometimes do is try the patent with one company first (Desire2Learn) ... then if that succeeds move onto others. So, there's a real benefit to helping Desire2Learn with their case.

Re: Blackboard Patents

Well, someone ought to contact Desire2learn and pass them on the information on prior art people have collected here. I'm pretty sure the Moodle community has been more efficient (and cheaper
) their lawyers could ever be.

Re: Blackboard Patents

Unfortunately that's not how the law works (at least, in the USA). Microsoft's customers can get sued for patent infringement, but MS provides indemnification for end-users. If fact, when MS lost the Eolas activex case and rolled out an auto-update fix they made it clear to corporate customers that if they didn't apply the patch they wouldn't be indemnified against patent claims by Eolas.

Re: Blackboard Patents

"indeminfied" yes, but has there been any analysis of how much it cost MS customers to roll out the patch and re-write their web pages and applications to work with the new way of handling object code?

It might have saved everyone a good deal of money to have settled with Eolas rather than having to recode.

On the other hand, perhaps Eolas v. MS is a good example of what might happen with BB vs. D2L, it becomes clear whether BB can patent the entire industry of online learning, or just a specific architectural/engineering method for delivering large scale elearning applications.

INAL, but I suspect it will be the latter, and perhaps folks who are using J2EE/.NET style application erver/servlet applications will have to pay, while folks using Apache module 'shared nothing' script based applications will be ok. Of course MS might want to chime in on whether .NET applications can be used in education, as might Sun.

In my guess this case will come down to whether D2L uses a similar application architecture to BB's to achieve scalability. If on the other hand the entire field of online learning is given to BB, that has very broad implications: for instance if a teacher sets up a Yahoo group and adds his/her students as members, who gets sued, the school? The teacher? Does Yahoo have to make sure that no teachers are using their groups for classes? Does MySpace? Google? If you set up and Apple server and give your teachers write privileges to their directories, is that a conflict?

Hopefully D2L will bring in some folks who can explain these complex issues to the jury, and get the patent's limits defined more carefully.

Re: OTP: Re: Blackboard Patents

Ray, you must join the hep cats like me who read Slashdot where I learn these abbreviations and spend hours reading utter drivel from socially mal adjusted geeks who live at home and think that the USA is the whole world

One of the comments in the current Moodle story is that to avoid this patent Moodle could "moove offshore", duh, like what shore? ROTFL, LOL, etc etc etc

Re: Blackboard Patents

Martin - you raise an interesting point .... that Patents only affect Developers. One other issue that people have not addressed is the fact of IP. If any of the people cited in the original Patent Document have moved on and still engaged in the industry, it raises issues on IP ownership. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

A couple of simple and effective approaches. Concentrate of the Institutions that are using Blackboard and demonstrate the stifling affect this Patent will have on their learning environments (having to follow one pathway and solution) and their longer term abilities to promote innovative learning within their institutions. Influence the bean counters of the institutions that a good slice of their licence fees are to fund legal action against flexible learning innovation - the very core of education.

I appreciate it is a simplistic view in the initial stages, but many in the hierarchy need view it in broad simplistic terms understand the implied impact. Then we can get into the complexities.

One question for MD …..has Bd copied any of your development IP in the enhancements of their program that has crept its way into the patent ….Or for that matter any one else’s?

Re: Blackboard Patents

Any statements in this press release about future expectations, plans and prospects for Blackboard and other statements containing the words "believes," "anticipates," "plans," "expects," "will," and similar expressions, constitute forward-looking statements within the meaning of The Private Securities Litigation Reform Act of 1995. Actual results may differ materially from those indicated by such forward-looking statements as a result of various important factors, including the factors discussed in the "Risk Factors" section of our most recent 10-K filed with the SEC. In addition, the forward-looking statements included in this press release represent the Company's views as of May 10, 2005. The Company anticipates that subsequent events and developments will cause the Company's views to change. However, while the Company may elect to update these forward-looking statements at some point in the future, the Company specifically disclaims any obligation to do so. These forward-looking statements should not be relied upon as representing the Company's views as of any date subsequent to May 10, 2005.

Re: Blackboard Patents

I thought that was the standard disclaimer gobble-dee-gook in the "about Blackboard Section" meant to be attatched to anything that could resemble a financial projection. (I'm in the middle of reading about the Enron meltdown).

It would be interesting to know if it really is intended to undermine the content of anything media releases.

Re: Blackboard Patents

What i disagree with quite strongly is Blackboard's claim to be a 'thought leader' in online learning technologies in their patent press release where in the reviews of VLE / LMS systems that Oleg Liber and I authored in 1999 and 2004 for JISC their approach in comparison to other systems around seemed to be anything but innovative - from a pedagogical standpoint at least. googling 'a framework for the pedagogical evaluation of vles' will find it for anyone who is interested

From our original report I seem to remember that a number of the web-based systems we looked at pre-dated blackboard. TopClass was one, I'm pretty sure that Virtual-U also did, along with FirstClass and others. Our own work on the 'Toolkit for the Management of Learning', later to become Colloquia dated from 1997. I'll add it to the online history..

"Honest and Ethical Conduct and Fair Dealing
--------------------------------------------
Employees, officers and directors should endeavor to deal honestly, ethically and fairly with the Company’s suppliers, customers, competitors and employees. Statements regarding the Company’s products and services must not be untrue, misleading, deceptive or fraudulent. You must not take unfair advantage of anyone through manipulation, concealment, abuse of privileged information, misrepresentation of material facts or any other unfair-dealing practice."

* Endeavour to deal honestly, ethically and fairly
* Statements regarding the Company's products should not be untrue
* You must not take unfair advantage of anyone through manipulation, concealment, or misrepresentation of material facts
* Or any other unfair-dealing practice

I would have thought these simple guidelines would not be so difficult for Blackboard's directors to comply with.

Re: Blackboard Patents -- link to file and analysis

Also reading up a bit on US patent law, and checking with people who work in IP law, but it seems to me that under US law you can only ask for royalties from the date the patent was granted. It is not retroactive to the date of filing, unless you meet a relatively high standard. As my lexis-nexis acct expired a while ago (sigh), I have to refer to Wikipedia which says

"In U.S. law, no infringement action may be started until the patent is issued. However, pre-grant protection is available in the U.S. In the U.S., 35 USC 154(d) allows for a patent applicant to obtain a reasonable royalty for infringing activities before a patent is granted. This right to obtain provisional damages requires a patent holder to show that the infringing activities occurred after the publication of the patent application 18 months from filing, that the published application is substantially identical to the eventually granted patent, and that the infringer has "notice" of the published patent application."

Re: Blackboard Patents

...perhaps this agressive move by Blackboard could in the end hasten the development as well as increase the importance of the next generation of learning management systems. One could even speculate if this will cause the many open source systems, such as Moodle to evolve even faster. Perhaps this will direct more attention to the much discussed personal learning environment and social systems like ELGG?

In reading over the text of the patent, and noting its big emphasis on predetermined and predefined teacher-student roles and the interaction between those two, it seems to me that the new roles system in Moodle will make Moodle quite a different system fundamentally from what Blackboard has patented. Even the fact that Moodle already has editing teachers and non-editing teachers, and the fact that a student in one course can be a teacher in another makes it different from the basic patent description already.

Also, in their first claim they say each user is associated with a particular computer. I think that is going to be impossible to defend as what about a bunch of students accessing Moodle from a computer lab with shared computers? Or what about a student who accesses it from more than one computer? Even Blackboard doesn't work the way they describe it.

Re: Blackboard Patents..Positive Plan?

Now, if one of the forum members was a lawyer who could put these citations into an amicus curiae brief (or dozens of them, for that matter), then maybe we could make Blackboard pay for their arrogance. Surely no claim in the patent is so bulletproof as to withstand the shelling this community alone could deliver?

I mention it because I've seen too many cases where people start off a barrage of sniveling "Ain't it awful!" and then never take any action to correct the injustice being observed.

Furthermore, I strongly suggest an action campaign to influence Blackboard's current University customers to change to a competing product, citing all the deficiencies of the product and exposing their weakness as a third-rate product in need of legal trickery to maintain competetiveness. I bet that would get their attention! Today's "users" are tomorrows "administrators" and it would be counter-productive to cause long term resentments in the people who may be responsible for buying their product someday.

Re: Blackboard Patents..Positive Plan?

Well, I'm not so sure I would call your approach a totally positive one. And reminding people that Blackboard is suing their competitors may just cause the people buying the products to take a wait and see approach until the lawsuit pans out.

Rather than focus on Blackboard's "weaknesses" (there's got to be a reason the universities are using Blackboard to begin with so we can't assume that these things are weakensses), one should focus on the strengths that set Moodle apart and especially those that make it different from the patent description of Blackboard. The new roles system being one that is immediately apparent, and I am sure there are more that can be found.

Re: Blackboard Patents..Positive Plan?

And reminding people that Blackboard is suing their competitors may just cause the people buying the products to take a wait and see approach until the lawsuit pans out.

Good point...I had this exact discussion today with a university leader...university leaders are taking notice of this and it would be foolish of anyone in this business to just blow it off and not worry about it.

It will be interesting to see how this turns out, but I think there is the potential for this to be more serious than many believe. Patents and Trademarks are good things...until you become the victim of one

On a side note...I started teaching online classes in the mid 90s with a very large online university...the University of Phoenix Online Campus. We used "Convene" a very basic LMS (I think the university started using it in about 1990) and later (around 1998) switched to Outlook Express Newsgroups. There is plenty of "prior art".....online learning was happening long before Blackboard...whether that will matter or not remains to be seen.

Re: Blackboard Patents..Positive Plan?

Trademarks are names. Everyone would agree that Blackboard can use that name for their products and have protection.

Patents are supposed to be for specific creations/inventions, which is fine. The trouble is that software patents are actually locking down generic IDEAS and PROCESSES. And in this case the ideas are not even slightly original.

Re: Blackboard Patents..Positive Plan?

I doubt rather seriously that D2L will acquire any new business while the Bb lawsuit is hanging over their heads. The question for D2L is, can they make it without acquiring any new business? If I were Bb, I'd draw out the lawsuit as long as possible and keep the cloud of doubt hanging over the competition. The most urgent question for D2L is, can they maintain existing business with the lawsuit going on?

What CIO in his/her right mind is going to bet on the future of any of Bb's competitors? Or, to put it another way, if your CIO walked up to you tomorrow and said, "Guess what gang? We're dropping Bb and going with D2L." How would you react? Sure, D2L *might* make it. They might. But they might not. But is that a risk that your institution is willing to take? And compared to Bb, who has the greater likelihood of survival?

While no CIO in his/her right mind will jump ship from Bb to D2L, it's very feasible to see CIO's jumping ship from D2L to Bb. After all, if you are betting on D2L making it and it looks like they might not, you'd be irresponsible as a CIO not to do something proactive.

I agree with someone else (can't remember who) who said that Moodle and Sakai are probably safe from Bb. Bb needs them to justify its claim that it is not a monopoly.

What other countries are covered by the patent?
Patents corresponding to the U.S. patent have been issued or are pending all over the world including in the European Union, China, Japan, Canada, Australia, Singapore, New Zealand India, Israel, Mexico, South Korea, Hong Kong and Brazil.

Re: Blackboard Patents

I've been wondering why Blackboard went after D2L in particular. In poking about on the internet, I've got a theory. If you google D2L and Blackboard, you will notice that an awful lot of universities are switching from Blackboard to D2L lately, probably more than are even switching to Moodle. Blackboard probably also realizes that a lot of D2L customers are the kind that potentially could be Blackboard customers instead. Many Moodle customers, even if Moodle did not exist, would not switch to Blackboard simply because it is out of the price range of many of the Moodle users, it doesn't support their language, etc.

And since they both are operating on the same business model and aiming at the same sort of customers, it isn't a stretch to think that D2L did try and make themselves into an alternative version of Blackboard in order to get its customers. If you look at this comparison of the two they sound awfully similar:

Re: Blackboard Patents

"But Mr. Small [Bb]said fears like those expressed by Mr. Schilling [director of information technology at Amherst College] were overblown. It would make no sense for Blackboard to go after open-source programs like Moodle and Sakai, he said, because they are not commercial providers."

Re: Blackboard Patents

Thank you very much for posting that Chronicle link, Rich. I find a quote down at the very end of the article quite interesting:

However, he [Blackboard VP Small] also said that had Blackboard not merged with WebCT, then WebCT would have been infringing the patent.

That suggests to me that Moodle, Sakai, UCompass, Angel and all the other course management systems are at risk. No, Blackboard isn't likely to sue schools and universities (after all they are all potential customers) but you can bet they'll play the, "You know, if you go to market with XXXX product you will be violating our patent" threat to the hilt against anyone who produces course management software (anyone who might take a customer away from them) including Moodle Pty Ltd and the Sakai Foundation.

Re: Blackboard Patents

Clearly they went after Desire2Learn because it is Bb's next biggest commercial competitor after WebCT which it bought last year. It would be harder to sue the open source systems like Moodle (Who would you sue - Martin?).

This discussion has focused on learning management systems in the education area. There are also at least 100 LMS competitors in the corporate sector - Saba, SumTotal Systems, Plateau, Training Partner, GeoLearning, Learn.com, etc., etc. The first four of these also existed prior to 1997 (when Blackboard started). SumTotal Systems was previously known as Click2Learn and, before that Asymetrix - makers of ToolBook and founded by Paul Allen in 1984.

The way I read the patent, Blackboard could also go up against all of these people. This is indeed scary and we should support Desire2Learn (a smaller but good Canadian company). At http://www.theinquirer.net/default.aspx?article=31833 you can read the story of a New Zealand actor who convinced the patent office to re-examine Amazon's "one-click" patent (which, I believe, was among the first patents for an idea). He claims that a previous patent was issued for essentially the same thing. If anyone received a patent or submitted a patent application prior to 1999 we would have a case. Is that likely?

Internet-based education support system, method and medium with modular text-editing component for use in a web-based application (19Aug03)

Content system and associated methods (13Aug04)

Internet-based education support system and methods (28Jul05)

The patents cover other e-learning technologies and specifications other than the 44 claimed in Blackboard’s first patent to be granted in the United States. It appears that they could potentially be claiming to have invented Learning Objects, multi-language LMS, embedded HTML text editors, as well as the original claims of many core functions of LMS systems."

We need to set up a website for registering support against Blackboard and collaborating internationally to take down these claims. As a safeguard, we should also patent the idea of a web application being used as a means of organising and facilitating international social action and collaboration. ;)

Re: Blackboard Patents in Australia

That is a good idea Leonard - rarther than wait for Blackboard to taken patent legislation against others, it would be a good idea to send prior art to patent offices. If a patent might be overturned or not granted, then it would be a considerable confidence booster.

Do you know the procedure for filing prior art in Japan, Jamie James Philips?

Where is the mother of all prior art wikis? I think that it would be a good idea if it were very prominently advertised on the Moodle site - As The History of Online Education - and I guess public (wikipedia).

I don't think that Blackboard will be able to patent the concept of online education, but it is in the nitty gritty that Blackboard will genuinely have made innovations and patented them. E.g. Someone mentioned the use of drop down menus to change languages (I guess that his is the same as the multi-language capability above). Each of these patents and the prior art relating to them needs to be considered in turn.

There have been posts by moodlers asking for Blackboard features and some of them . I guess that reallly truly there are some features in Moodle that are inspired by Blackboard.

But also there is a lot more innovation going on here at Moodle than there can be a Blackboard, due to the size and energy of the community. There must be loads of innovations that really truly took place here, that in the future Blackboard and its competitors will not be able to do without. E.g. autoenroll into groups using student passwords and many many more. Do these count for anything. When Blackboard comes and points out one of the minor innovations of blackboard that may be being used at Moodle, will it be possible to point to the many innovations that occured at Moodle that Blackboard will want to use, and ask them to get the plank out of their own eye?

Re: Blackboard Patents in Australia

I would be careful about submitting prior art directly to the USPTO without consulting an attorney. If you send in prior art which does not have every claim int the patent, it won't overturn the patent. You would still be able to use the evidence in court, but it would have less weight as the court will consider the fact that the USPTO is now aware of the evidence and decided it did not invalidate the claim. (I am not a lawyer, but I have consulted one).

Re: Blackboard Patents in Australia

Which is the wiser choice?
Squaring up the Bb with that sort of site and admitting they have a case, or do you turn and walk away because they don't?
Bb has certainly stirred up some panic in the community - I bet as Bb read this they are having a good giggle, like a child poking a stick in an ants nest.

Re: Blackboard Patents in Australia

Well, I always recommend hoping for the best but preparing for the worst. Seems like that might be a good policy in this case, too.

If it proves necessary to do so, I will contribute whatever money I can afford to this noble cause. And I will certainly contact the appropriate politicians to help educate them about this issue. That's about all I can do, I guess. (Of course, I am open to suggestions.)

Re: Blackboard Patents in Australia

I don't think that creating a site to rebuff Blackboard's claims is at all admitting they have a case. However, Blackboard have seen fit to throw the book at Desire2Learn, and the only way to defend that company, and any others Blackboard decide to sue, is to act in a methodical, organised fashion to construct a legal case and an international support network.

Walking away will only leave each respondent isolated against Blackboard's corporate largesse, with Blackboard accumulating damages from each successive victim to sue the next.

Organising a collaborative website and planning to strategically and methodically have Blackboard's claims dismissed, and their ethics shunned, is the farthest thing possible from panic. Panic is to run and hide in the sand; an organised defence will make Blackboard think carefully about wielding their patents or claiming further inventions they did not truly make.

Re: Blackboard Patents in Australia

It's interesting that Blackboard insiders have dumped over 4 million shares of the company in the past twelve months, while purchasing a mere 2,500 shares. These don't exactly seem like the actions of a management team that has a high degree of confidence in the long-term profitability of their company.

Bb also had a negative cash flow of $2 million last year, and their net income went from $23 million in Q4 2005 to only $148,000 in Q1 2006 (no, there aren't any missing zeros in that number). They're also predicting a $6.1 to 7.8 million loss for the second quarter, and a $12.7 to $13.7 million loss for 2006 as a whole. They're attributing much of that to "non-recurring integration costs" (presumably arising from the WebCT buyout?), but still....

It's pretty amusing that they're carrying $10 million in "goodwill" on their balance sheet as a long-term asset. I'd bet that "asset" has not only vanished, but actually gone negative this week.

We may be seeing an attempt to stop their stock from cratering after they announce their Q2 (non)income next week (August 8). If so, I think they've made a serious blunder. Almost all the publicity I've seen is negative; causing your customers to hate your guts is rarely a sound business strategy.

Re: Blackboard Patents in Australia

These are always very tough situations but I would take a defensive and offensive strategy.<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

Defensive: If Moodle happens to violate Blackboards patent then position it where is doesn’t. For instance, if Moodle (core) was simply a collaboration platform that third-party people made add-on modules and blocks that together created a LMS-like product. Then neither Moodle or any individual add-ons violate the patent. This idea might be a long-shot but it seems right to me. People who wanted an CMS/LMS/VLE would have to build it themselves or someone would create a script that would gather these remote modules and combine them. I think this would work if Moodle (by different add-ons) could become something else like just a blog site, or a wiki site or just a SCORM testing tool. Blackboard would have to sue a whole group of people whose unique combination of products happen to create a LMS-like application.

Offensive: What if one of the third-party add-ons converted a Desire2Learn course to a compatible format which could be used by a Moodle-like product. As Blackboard sues others more conversion modules appear.

Re: Blackboard Patents in Australia

You are way off the mark there Roger. I suspect that having a good giggle will be the last thing they will be doing. Making such a site is not admitting they have a case, it is exactly the opposite. They would laugh quite a lot though if people just turned and walked away though. Judges can make some very strange decisions sometimes, especially with regards to technology they sometimes appear to barely understand. Increasing the chances that they will lose to as great an extent as possible is a very sensible thing to do. This is a very risky move by Bb and if they were successful it would set an extremely unfortunate and troublesome precedent. Everybody must work together to make sure that doesn't happen. The actions by Bb are not the actions of a confident company, more like the final dangerous lunges of a cornered man that may be in some difficulty. And judging by the number of attendees at their stand at the last e-learning exhibition I went to, they could well be experiencing some serious problems.

Re: Blackboard Patents in Australia

The wording of Blackboard's patent applications is very interesting - not so much perhaps in what they are claiming technologically but in how they describe and identify learning. Notice, for example, how they talk about Blackboard as a learning "support" system. Do they have some idea of protecting the Blackboard VLE as a blended learning delivery system? If a system "supports" learning, where is the core learning taking place?

If you look closely at the text of their patent application there is continual reference to their VLE and its tools as means of "instruction". (It's impossible to describe tools and facilities without implying a learning theory and its pratices.) This instructional emphasis by Blackboard is something we have been aware of for years - particularly in the UK. In many instances, in order to provide effective learning, we have to work around the obstacles presented by Blackboard structures.

Blackboard is inherently (and seems to have been designed and marketed as such) a content delivery and testing environment with an underlying knowledge delivery metaphor of learning. All of which mirrors somewhat dated conceptions of instruction that are, unfortunately, still fairly widespread - probably more so in the USA than elsewhere. However, the significant advances in elearning have all come about through a recognition and development of online learning communities, where peer-to-peer interaction and content creation are more important than how a teacher delivers knowledge or tests skills. To me, this is the gap in Blackboard's claims for a learning system. They continue to misunderstand the nature of learning in general and hence of elearning in particular.

Re: Blackboard Patents

I've created a new page in Moodle Docs to document the patent infringement lawsuit, since it concerns us as well. The page is called Blackboard v. Desire2Learn. I am an inactive lawyer teaching chemistry now, using Moodle of course. So I'm very interested in the progress and outcome of this (as are all of you, I'm sure
). It's a bold move by Blackboard - quite a gamble really, since, as everyone has pointed out, there's so much prior art that will help to invalidate the issued patents. It's no secret that the USPTO has issued so many bad patents over the last 10 years. To actually litigate on this bad patent is really something.

Cheers.

By the way, the word "Moodle" is not in Aspell dictionary here! That might be taking IP rights to a new level!

Blackboard has no plans to go after Moodle

"But Mr. Small [senior vice president and general counsel of Blackboard] said fears like those expressed by Mr. Schilling were overblown. It would make no sense for Blackboard to go after open-source programs like Moodle and Sakai, he said, because they are not commercial providers."

If that is true, it confirms my theory that they wouldn't go after Moodle because it simply is a totally different business model. Clearly they decided to go after the threat that resembled them the most, rather than a less well-funded small fish that would be easy to battle.

Re: Blackboard has no plans to go after Moodle

This has been discsussed on the JISC VLE list. Here's my response on this from that list:

"It would make no sense for Blackboard to go after open-source programs like Moodle and Sakai, he said, because they are not commercial providers"

This approach makes sense for Blackboard, as to "go after" Moodle or other OS alternatives would be detrimental (I suspect and hope).

However, having secured this patent it would be naive not to expect Blackboard to parade it in marketing material and sales presentations, placing the prospect of future litigation firmly in the minds of decision makers. The entire situation is an ideal opportunity to spread FUD.

As someone has suggested earlier (in the JISC VLE discussion), one always expects commercial entities to protect and further their market presence and profits. However, given what is at stake for education globally the whole affair is quite unsavoury.

No matter what the facts of the matter may be I would hope that the question posed in any (of the many) discussions on this topic in future will be "Do you want to do business with people like this?"

Re: Blackboard has no plans to go after Moodle

Well, we definitely want to spoil their patent anyway, to close their options. If the SCO case teaches us anything, is that exit strategies can be quite disruptive.

And to tell you the truth, I want Moodle (and FOSS) to win on merits. I don't want the patent to kill proprietary LMSs either... if that was possible at all! If the patent "works" against some LMSs, it'll work against Moodle, the license doesn't make a difference.

And at the end of the day, I want to work in a space full of new ideas, not of monopolies on the obvious...

Re: Blackboard has no plans to go after Moodle

"The education community needs to stand together on issues like this and send a very clear opposing message."

And, I think we need to get this message out into as many media outlets as possible - online and traditional. If anyone has the connections to get articles written in newspapers, magazines, etc - that would help spread the word.

Someone also might consider releasing a press release about this. Not someone who actually works for any LMS (lest they incur the wrath of Blackboard next), but if some connected company or even some group of companies and organizations would band together and release a statement, that could help get the message out more.

Re: Blackboard has no plans to go after Moodle

Mumbai: While it is true that the market for online education in India is
barely Rs 500 crore, it is also true that the space is growing rapidly. But
more importantly, Indian companies are hoping to grab a share of the global
business expected to be valued at $21 billion by 2008. But even before it
takes off, the business may have hit a huge road block.

Washington-based Blackboard, has been granted a patent for technology used
to deliver internet-based education and support. The patent is already
applicable in the US, New Zealand, Australia and Singapore. Its sweep spans
every little bit of online education including processes like how courses
are offered and managed. The patent is now pending in other countries
including India.

Signalling what it intends to do with the patent, on the day it was
awarded, Blackboard sued Canadian company Desire2Learn, its main competitor
in the market that caters to American students.

Even as lawyers at the Delhi-based NIIT are studying the fine print of
Blackboard’s patent, industry experts say Indian companies enrolling
USbased students for their e-learning programmes need to watch out. Any
infringement of Blackboard’s patent may invite a law suit running into
hundreds of thousands of dollars.

Says Samudra Sen, CEO of Mumbai-based LearningMate Solutions, which
works with leading e-learning companies globally, “The patent is certainly
going to be an irritant.’’

Founded in 1997, Blackboard filed its patent request in June 2000, when
e-learning systems were already in use for many years. The company’s patent
encompasses many commonly used methods that companies and universities have
used to deliver their courses to students.

Says a private equity investor, who funded online education companies,
“The patent is so generic, it is not funny. It covers everything that a lay
person will know about e-learning. I don’t think it will stand scrutiny.’’

Yet, it is the all encompassing patent that worries the industry. In the
past, despite computer programs being obvious and known for many years
before patent application, courts have upheld the patents.

Cadtrak, a company which owns a patent involving a cursor on the screen,
collects million of dollars from large computer manufacturers for using its
technique.

The courts upheld the patent twice though the technique as used at least
five years before the patent application. UK patents covering customary
graphics techniques, including airbrushing, stencilling, and combination of
two images under control of a third one, were recently upheld in court,
despite the testimony of the pioneers of the field that they had developed
these techniques years before.

In the software industry, nothing protects programmers from accidentally
using a technique that is patented, and then being sued for it.

At first blush though, Indian companies don’t seem worried yet. They
feel the patent can cover only specific systems and there are many avenues
to deliver e-learning without infringing on Blackboard’s patents.

For example, popular exams like GRE and GMAT have been administered on a
client-server based platform for many years. These tests follow a unique
system of adaptive questioning, where the system increases or decreases the
difficulty of the next question based on the answer to the previous one.
Since Blackboard’s patent is specific to its methods, the patent won’t
affect these popular tests.

Says Vijay Thadani, CEO of Delhi-based NIIT, “Internet technology is
vast and evolving. There are numerous ways to deliver courses online and
assess students. I don’t think we will worry very much about this patent.’’

But the patent has already created a buzz in the e-learning space. Many
reckon this could be the defining make or break moment for online learning
companies.

PATENT TROUBLE

US-based Blackboard gets a patent for net-based learning management systems
in the US, Australia, New Zealand and Singapore
Patents pending with EU, China, India, Israel and few other countries

The patent covers an extensive list of 44 processes including common ones
like registration, online assessments and grade book
Schools can get into trouble for undertaking simple networking tools, user
authentication process and other commonly used functions like discussion
boards as a result of the patent

Online learning companies in India still not worried by the patent, saying
it is too generic and will not stand the test in court

Re: Blackboard has no plans to go after Moodle

The problem with any of the press releases from blackboard is the disclaimer....

" Any statements in this press release about future expectations, plans and prospects for Blackboard and other statements containing the words "believes," "anticipates," "plans," "expects," "will," and similar expressions, constitute forward-looking statements within the meaning of The Private Securities Litigation Reform Act of 1995. Actual results may differ materially from those indicated by such forward-looking statements as a result of various important factors, including the factors discussed in the "Risk Factors" section of our Annual Report on Form 10-Q filed on May 10, 2006 with the SEC. In addition, the forward-looking statements included in this press release represent the Company's views as of July 26, 2006. The Company anticipates that subsequent events and developments will cause the Company's views to change. However, while the Company may elect to update these forward-looking statements at some point in the future, the Company specifically disclaims any obligation to do so. These forward-looking statements should not be relied upon as representing the Company's views as of any date subsequent to July 26, 2006."
http://blackboard.com/company/press/release.aspx?id=887622

Them saying that they will not go at moodle now does not preclude them from doing it in the future. I've heard back from Bb and they are going to 'try' to send someone our edtechtalk conference this weekend. I really want to ask them for confirmation on this...

Re: Blackboard Patents - What about SCORM?

Okay, read the BB patent which as others have said, covers just about everything you can do in online learning. Then, consider that the wording of this patent would no doubt cover SCORM technology which was created by the U.S. Department of Defense. So, this means that perhaps all the ADL folks need to pipe into the battle. Everyone in any aspect of online learning is a present or future target. Is the U.S. DOD going to shut down all their military SCORM systems now? I don't think Bush will agree to that.

Re: Blackboard Patents - What about SCORM?

So what needs to be done?
Can the tasks of helping desire2learn and moodle, be broken down into small bits?
Other than research into prior art, are there other tasks such as
donating
lobbying
investigating legal precident?
The site were this will take place will be announced in a moodle news email soonish? Or here?
Tim

Re: Blackboard Patents - What about SCORM?

I posted a couple of early Japanese online education book titles (with concrete examples in 1999 and 2000) to the wiki and have contacted a couple of experts in online education in Japan to ask them if they know of any early online education systems. I also contacted the maker of "quiztest" the testing system I used before I started using Moodle.
http://www.tesol.net/scripts/QuizTest/

However, my guess is that it will not be sufficient that a teacher in 1985 told his students to go home and have a look at an internet quiz. Again I guess that there is going to be some definition of a learning/educatoin "system" or "environment", with certain components, perhaps
Login
grades in one area
more than one type of resource/activity
Once we know what the definition is, then we can go and look for it.

Re: Blackbard Patents - What about SCORM?

Having looked at the patent, it seems that they Blackb are concentrating on the admin (course creator) functionality, and the ability to add multiple resources/activities to multiple courses.

Things to do...
The idea that Blackboard is trying to patent is very similar to phpnuke and all the non-educational cms's. I am not sure what the essential difference is, especially since the patent does not seem to cover is a centralised graditing system. It does, however, mention tests (as well as chats and resources which would have been in any cms) and it does mention limiting access to the courses. So when did the nukes first have user authorisation (limited access to the Web site) and a test module? After that difference seems to be one of nomenclature. Who wants to contact all the old favourite CMS's?

I am not recommending "blog spamming" but perhaps it would be a good idea to make a habit of posting to educational blogs mentioning moodle or another LMS with links to the the wikipedia page and perhaps the discussions at the other major LMS. Or would that be fuddy duddy?

Where are the discussions corresponding to this at dokeos/claroline, atutor, manhattan virtual classroom and Sakai?

Re: Blackboard Patents

Well, I think that BB has just shot itself in the foot. If this is their business style, then I want absolutely nothing to do with them. I was a future prospective client of BB but now will simply not do business with them. The damage to the good, that the OS community has achieved in Africa, is unforgivable. If they can damage good community work, imagine how they will treat clients in the future.

Re: Blackboard Patents

I have been watching this thread (and continue to do so) with extra special interest.

What a shame that we now seem to have purely commercial companies that seem to have totally missed a significant educational philosophy - that universities and colleges worldwide are traditionally in the business of shared knowledge, academic freedom of choice and expression, collaboration in research and support for the common good of educating our students - or is that a too idealistic and naive concept these days?

What maybe an interesting idea is to try to make such companies, who obviously are not understanding, or appreciating, the nature of the environment they exist within, better appreciate that learning and teaching are the important factors here - whatever system one chooses to adopt. Perhaps we could appeal to them through other avenues.

As someone who regularly speaks at education conferences, particularly those interested in e-learning, I have been increasingly worried to see how many conferences of late are sponsored by the big names in educational software. Of note, is perhaps the most prestigious of these - Online Educa - http://www.online-educa.com - that of course this year has Blackboard as one of its major sponsors. It would be interesting to have one of their steering committee comment on what many seem to view as an upcoming monopoly on e-learning freedom (albeit this seems to have already existed in universities for some time through expensive contractual commitments).

If the backlash that is apparent in this forum becomes mainstream opinion, then I am sure such conference organisors would not want to remain associated with companies that in their actions appear to be promoting online education back to the dark ages and probably stand against the views of most of its speakers. After all, its taken many people a long time to encourage our more conservative colleagues that online education is indeed a viable additional option to more traditional methods of teaching and learning. What a shame it would be to remove the freedom of choice in how we do things pedagogically.

Re: Blackboard Patents

I wrote some of this comment on one of the blogs that broke the story, but it bears repeating here I think (with some additions):

I really can’t imagine this issue getting very far in practice, but it will generate a lot of lawyers fees as they argue it out. (I suspect it will go the same way as British Telecom’s hyperlink one). It's rather a WMD really and nobody wins. If they succeed in upholding the patent, they lose enormous goodwill and probably customers. It's such a futile exercise.

More to the point though I wonder if they have seriously underestimated the backlash that this might cause. Lawyers can be pretty persuasive and it feels like the kind of thing that happens when a couple that otherwise would be amicable get nasty in a divorce.

Universities (especially outside of the US, but there too of course) can be pretty hostile to that kind of corporate greed, especially as many of them are tied into massive contracts with WebCT/Blackboard. Most Sys Admins seem to find it a nightmare and a waste of money, especially as so many of them have come to love open source projects (and often contribute to them).

It seems like the desperate actions of a company failing to see the shifting nature of technology and emerging cultures. It’s a very out-dated way of thinking and on top of that Blackboard isn’t even very good. It is increasingly hard for private companies to compete with open-source projects with regards to very complex software (as Microsoft are finding out the hard way). A large software project is massively more complex than building a jumbo jet. It is very hard for one company, even with large resources, to manage that (as a journalist/blogger wrote somewhere recently - I can't find the reference).

Re: Blackboard Patents [don't worry]

don't worry. Latest news seems to confirm that an earlier patent is going to make BB to bite the dust.

Also, any news about "That exact site is being set up, should be announced soon"?. I've been searching for any worldwide (supra-moodle) place where people was getting organised but I haven't been able to find it.

Re: Blackboard Patents

I totally agree with David ... as I mentioned earlier in this discussion, the notion of differences in teaching and learning approaches (and tools) - more to the point the emphasis on sharing of knowledge between distanced colleagues of such approaches (and tools) - is an academic foundation that Bb seem to have totally missed.

Future e-learning conferences are surely going to be extra 'spicy' in the current context of this dubious patent.

Re: Blackboard Patents- New (Bad?) Patent Law Proposed

Just as we are feeling the backlash from Bb patent filing, CNET News reports today that "Senators offer sweeping patent system changes" which would in effect cause at least this change:

"Specifically, it would shift to a "first to file" method of awarding patents, which is already used in most foreign countries, instead of the existing "first to invent" standard, which has been criticized as complicated to prove. Such a change has already earned backing from Jon Dudas, chief of the U.S. Patent and Trademark Office."

At this point, our chief defense against the Bb patent is that there was prior art before Bb filed their patent application. If this bill becomes law, this argument is no longer available, since as I read it the "first to file" wins the case. Bb was here the first to file.

According to the article, Microsoft and other software companies are in favor of this new law. As I see it, it would favor software companies at the expense of those of the rest of us who have no way to patent anything, and no ability to discover a patent within the one year window of opportunity to dispute the patent.

By the way, one mistake Bb may have made was to sue under their patent before the existing 9 month limitation on disputing their patent expired. Had they just taken a low profile, I doubt if anyone would have even known they filed a patent. Even Desire2Learn was reportedly surprised upon learning of the patent. My point is that no one routinely learns of someone being awarded a patent until their are sued, so there is no opportunity to contest a bad patent until it is too late.

I think our community should swamp Utah Republican Orrin Hatch and Vermont Democrat Patrick Leah who are proposing this bill with opposition. If not, it seems to me that a bad situation will soon become worse.

Re: Blackboard Patents- New (Bad?) Patent Law Proposed

I don't think the new law would effect this case since the patent has already been approved. I doubt they would make it retroactive. It might effect pending patents they have though.

In any case, I read somewhere today that BB may already have run afoul of the law in Australia in declaring their patent granted there when it hasn't been granted yet. Apparently this is a violation of Australian law...

Nobody seemed to have noticed the patenting process, even during the 6 month period in which people or organisations can protest against the patent (naturally, BlackBoard kept it under wraps). However, as soon as the waiting period was over, BlackBoard announced that they now had the patent and would enforce it retroactively (I believe until 1997, the year the company was founded). http://www.blackboard.com/patent/patentpress.htm

The very same day BlackBoard filed a patent infringement suit against the Canadian eLearning provider Desire2Learn, which presently is BlackBoard's major competitor in North America. The suit was filed in a rural Texas court (one can assume that BlackBoard figures that it will be easier to get their way with a bunch of nationalist hayseeds on the jury, no offence intended). Text of the suit: http://www.theinquirer.net/images/articles/blackboard.pdf

Reaction

The outcome of this law suit will have an important impact on eLearning. It is therefore of interest to us all to follow the procedure and to take action against the monopolisation of eLearning by one US commercial giant. http://www.boycottblackboard.org/index.php

This litigation once again shows that software patents are not conducive to the development of fair and open standards in eLearning and European Moodlers should support the European Parliament in its opposition to such patents. Support, for instance: http://petition.eurolinux.org/index_html?LANG=en

Re: Blackboard Patents

I'm trying to paste this in the wiki but its not getting done, pls help someone :

5th Century BC : Nalanda

The origin of Virtual Learning Environment can be traced to the 5th Century BC, when Indian Philosophers thought of ways to teach people without the ned to actually show what they were talking about. They thought that if they invented a platform in which learners can actively learn, communicate, collaborate and be tested, the paltorm would be an instant hit and they would patent it later.

They implemented their idea by setting up the Nalanda Uniersity in India. more details here This university, in the 5th centruy BC, catered to 10000+ and great teachers including Buddha. This university was the first platform promogating a Virtual Learning Environment - a place where the object about which teaching happens does not exist. unfortunately, this platform got destroyed in the year 1193 before the patent system could start, so the application for patent of this system which was written in the 5th Century BC could never be filed. Since then, all the schools, colleges and universities around the world have copied this Virtual Learning Environment.

Some private companies in the world have copied this platform onto the internet and in future would copy it in to newer systems, but the fact will remain that the system was invented and thought of long ago and therefore, no one today can claim of having created it.

Re: Blackboard Patents

Blackboard is going to be having a webcast conference call this afternoon at 5:00 PM Eastern Time (US) for the nominal purpose of discussing their second-quarter earnings. I would bet money that this patent issue comes up, though.

I'll be listening, assuming I can get on. Their site is already starting to become sluggish.

Re: Blackboard Patents

Slightly OT but still rather Interesting, searching on the BB site (try common LMS names). I bumped into an interesting presentation from May 2006 by T.Gidy (Executive Vice President of Operations).
Where he talks about walking in the shoulder of Giants.

Re: Blackboard Patents

To be fair, the presentation is really by Gilly Salmon, a well-respected e-Learning academic here in the UK, and the not very partisan suggestions for VLE Development at the end would be easy for us all to endorse. It's a very enjoyable survey, and I'm sure she was just being polite to her hosts at a BB conference with the occasional linkage like "From so simple a beginning endless forms most beautiful and wonderful have been, and are evolving. I do hope that will be true of the Blackboard VLE "

Re: Blackboard Patents

In reading some of the stuff linked to in the Feldstein blog, I came across a legal concept called "equitable estoppel" with regards to patents. As I understand it, if a company makes a statement that implies that they do not intend to enforce a patent against a certain entitity, and that entity acts in accordance with what is implied, then the company does not have the right to turn around and sue them later for infringing the patent. Now, I'm no lawyer, but that seems to me to mean that after the statements in the CHE made about suing Moodle or Sakai making no sense to BB might serve as a legal defense for Moodle if it were sued. And remember BB did not have the benefit of all the legalese they put on their press releases when they talked to the CHE.

Re: Blackboard Patents

I agree Tony - and good that you have put her presentation in context. Indeed, Gilly is not only one of the most respected, and widely experienced of the e-learning theorists, but also an adamant proponent of wide variety in choice regarding technology choices for e-learning practice.

In all my own associations with Gilly the issue of technology choices, being available and utilised to best serve one's own context and need, is one of the main messages she gives us to walk away with. Her own wide experience and practice is certainly based on the use of many, many different systems and tools.

Re: Blackboard Patents

Some of the outside commentary about the patent misrepresents the scope
of the patent and appears to be creating confusion for many people. The
Blackboard CMS patent covers only specific features and functionality
contained in the Blackboard system that were developed by the Blackboard
team.

I notice that he fails to specify what those "features" are, or what that "functionality" might be.

If he's concerned about people "misrepresenting" Blackboard's "inventions", he could clear up the "confusion" by simply telling us in detail what Blackboard invented.

Re: Blackboard Patents column today

Some argue that BB is using the courts as a competitive tool. An effective fly in the ointment if the hundreds of thousands of opensource LMS users filed intervenor status not just in Texas, but in every legal jurisdiction in the world. It costs little to file a writ. The result would be akin to using the judical system just as they have - by choosing the most favorable jurisdiction to litigate. By filing writs in every legal jurisdiction in the civilized (world) their lawyers would spend a fortune just sorting out the mess. It would be akin to a legal denial of service attack on BB.

Re: selfish moodle user

Moodle is not too good to be true, it is better than that A lot of people, have put a lot of hard work into it (and time is money). Either their own time or (like me for instance) as part of their day job.

Just to be clear, that there is absolutely no indication either now or in the forseeable future that you are likely to have any legal issues running Moodle.

This is what BB are trying to do - spread Fear Uncertainty & Doubt. Please lets not give them any encouragement!

Received this by email - Sheila is collecting questions to be put to blackboard from those involved in HE/FE in the UK:

To quote:

As you are all no doubt aware there has been quite a bit of controversysurrounding the recent Blackboard patent announcement. At the next IMS meetingin September (being held at Blackboard offices ) there is going to be a Q&Asession between Blackboard representatives and IMS members. IMS are alreadycollecting common issues from their members - but I suspect that at the momentthey will be quite US focused. As CETIS represents the UK HE/FE in IMS, I wouldbe happy to collate our common issues and feed them back to IMS for inclusion inthis session (and of course in turn pass back responses). Apparently thesession is going to be recorded but I'm not sure if the recording will be madepublicly available - or if someone will patent it first

If you have any issues you would like raised, can you please email me directly (s.macneill@strath.ac.uk) by Thursday 31 August. I'll then collate the commonthemes and compile a list for IMS, and feedback any responses to the community.

Sakai Foundation retains Software Freedom Law Center

In the wake of recent efforts to limit the free and open sharing of innovation for online learning, the Sakai Foundation has retained the Software Freedom Law Center (SFLC), an organization directed by Eben Moglen and dedicated to providing advice and legal services to protect and advance free and open source software, to evaluate the recent Blackboard patent, its impact on the educational community, and to advise on legal matters regarding the patent.

Sony refused peer-to-peer patents

Sony cannot patent inventions in the UK that remove the anonymity of the peer-to-peer (P2P) user experience and put social networking at the heart of file-sharing.

The Patent Office ruled last week that the inventions are not eligible for patents.

...Patent examiners initially objected that the inventions described computer programs and were not eligible for patent protection in the UK.

Sony's patent agent, Dr Jonathan DeVile, challenged this before Patent Office Hearing Officer Bruce Westerman. Dr DeVile said the examiners were wrong, that the inventions cannot be a program for a computer because, in operation, there are at least two computers involved, communicating over a network. Westerman disagreed.

Re: Blackboard Patents

INOL but the crux of the defence (or at least the defence that is not written in complete jargon ) seems to be that BB did not inform the patent office of prior art and, if this is proved, it invalidates the patent.

"...18. Matthew Small, the General Counsel for Blackboard, stated to the Association of Learning Technology (“ALT”) on August 23, 2006, either verbatim or in substance, that “Blackboard people, including Mathew Pittinsky and Michael Chasen worked as consultants to IMS during the late 1990s. This was before Blackboard LLC acquired CourseInfo and formed Blackboard, Inc. and became a vendor. The dates can easily be checked. CourseInfo 1.0 as a system, and Blackboard’s acquisition of it, predates the patent application.”...

...20. For example, the IMS Specification disclosed user profiles that allowed for a user to be assigned multiple predetermined user roles.7...

...21. Page 19 of the IMS Specification states, in part, “An IMS Profile for a user may include both learner-specific and author specific information since an individual can be both a teacher in one context and a learner in another.”22. The IMS Specification further discloses that these user roles are used to allow various levels of access to and control of various course files.23. Page 21 of the IMS Specification states, in part,In the IMS, as in many groupware products today, users participate in a group in the context of a particular role. For example, in the Biology 101 group, Mary Clark may be playing the role of a student. In this respect, she will only have access to those items that are granted to students. In addition, students are an identifiable group of people, so the teacher can send an e-mail to all of the students without having to address them one-by-one. In the Biology Study Group contained in the Biology 101 group, Mary plays the role of Group Leader. As such, she is able to invite new users into the group, add resources to the group, and otherwise manage the group."

Re: Blackboard Patents

Wow, Local daily newspaper(Caledonian Record VT, est 1837, circulation 10K) picked up something about the blackboard patents. Believe it or not, it was part of my eye doctor's reading test

Looks like it was syndicated. Good quarter page, did mention Moodle once. Followed by a quote attributed to BB CEO saying he was in favor of open source software and BB had an open source module etc. Reporter also mentioned the blogging going on and the very long Wikipedia page which had history going back to 1945 (a very good year that was). Anyone interested I can scan it.

Re: Blackboard Patents - Good news

Blackboard is making today patent pledge to the open source and home-grown course management community. announcing a legally-binding, irrevocable, world-wide pledge not to assert any of our issued or pending patents related to course management systems or transaction systems against the use, development or support of any open source or home-grown course management systems.

Re: Blackboard Patents - [not] Good news

I think that this pledge is a poor solution. To me, it looks like a masterful "spin" campaign that, in the end, leaves the patent in place as a potent tool for the future. The patent should be revoked based on clear documentation of prior art.

Quote:Blackboard hereby commits not to assert any of the U.S. patents listed below, as well as all counterparts of these patents issued in other countries, against the development, use or distribution of Open Source Software or Home-Grown Systems to the extent that such Open Source Software and Home-Grown Systems are not Bundled with proprietary software.

The language about "Open Source Software and Home-Grown Systems are not Bundled with proprietary software." could easily stifle some innovation in the future. It seems to me that BB is actually giving up very little here.

Re: Blackboard Patents - Good news

1) Bb's patent claims are currently being reviewd. According to the Software Freedom Law Center (SFLC), roughly 70% of re-examinations are successful in having a patent narrowed or completely revoked. Perhaps Bb, in an effort to save face and to make lemonade from lemons, has issued this statement in an effort to get something out of their law suit and patent. After all, if the patent is over-turned, such a statement from Bb is utterly meaningless.

2) The Sakai Foundation and EDUCAUSE issued a statment today that said the following:

"Although Blackboard has included in the pledge many named open source initiatives, regardless of whether they incorporate proprietary elements in their applications, Blackboard has also reserved rights to assert its patents against other providers of such systems that are "bundled" with proprietary code. We remain concerned that this bundling language introduces legal and technical complexity and uncertainty which will be inhibitive in this arena of development."

Re: Blackboard Patents - Good news

We remain concerned that this bundling language introduces legal and technical complexity and uncertainty which will be inhibitive in this arena of development.

I agree completely. "Bundled" with what? One could easily read this as Blackboard retaining the right to sue if someone (e.g.) started offering Moodle hosting services that ran on Windows or OS X servers. What about a "home-grown" system that integrates with Banner?

I can't pull up the Sakai Foundation statement right now (probably due to too many people hitting it ), so maybe they''ve already pointed this out.

Blackboard needs to stop letting their lawyers do their public relations. It's just making things worse.

Re: Blackboard Patents - Good news

I agree with points made here (and didn't see them before posting a blog entry) but it still helps me being happy. What can I say, it's a glorious day! Yes, it's very precisely a PR move on Bb's part. One that they had to make. A way to kind of weasel out of a tricky situation with the USPTO. I also agree that the current patent system (especially in the U.S.A.) is flawed.But I'm glad that there's such a move toward common sense in still stifled legal contexts. IANAL but I can think that some of the most FLOSS- and OA-friendly lawyers out there are quite happy when they see moves like this one. Regardless of how little risk they're taking, Bb is changing its tune about patent-protection. Which, in effect, makes patent law make a tiny bit more sense.One reason I am so enthusiastic is that I learned yesterday about SecondLife allegedly granting permission to a parody site to not only exist but even use a modified SL logo!!! Granted, SL is getting something out of this. But, IMHO, we (North Americans especially) live in a climate of utter legal absurdity patent offices granting patents for basic concepts and genes, media companies suing their clients, and all sorts of frivolous lawsuits against people and corporations.As an anthropologist, I don't see a formal legal system as a necessary evil. In fact, I don't think such a system is necessary for human life (and I'm not as ethnocentric as Durkheim was about the issue). But I do think that in societies where the legal-judicial system is as prominent as it is in the United States and other parts of Euro-America, it's comforting to know that not every legal action is completely unfounded.In other words, I think this decision by Bb to let go of their tiny little blanket is a victory for those of us who care about innovation and freedom despite the legalistic, sue-happy context in which some of us live.

Re: Blackboard Patents - Good news

>> It sounds, well, almost like poetry.Why, thank you! I'm in my poetic mode, these days...

>> Can I be an anthropologist, too? Please!Well, of course! As long as you don't expect to get "anthropologist" as a job title, it's in fact quite easy to think like an anthropologist and get surprised reactions when you open your mouth (which is the main thing about the discipline, one might say). What's funny is that, because we emphasise flexibility and critical thinking, our discipline is a pretty good way to join almost any field (tech, health, law, humanitarian, diplomacy, intelligence, consulting, marketing, government, psychology, biology, literature...). Having said that, I mentioned anthro because Durkheim's influence on the discipline came partly through the realisation that formal laws were a specific type of social construct that achieved certain goals in contexts where formal structures are needed. Yes, we do "get off" on things like that...

>> I live in a country where there are so few lawyers, (Images from the Simpsons of everyone joining hands in a large circle... )

>> I have never heard a person say they want to be a lawyer. Which is what I wanted to become, from age 8-11. I grew out of it when I realised that lawyers weren't just defending poor, innocent people...

>> Funny, the number one dream of kids is to be a teacher (sensei). Still now. In France, it tends to "Physicians Without Borders" or Gendarmes. Not sure about Quebec. For a while, it was something like travel agent or veterinarian.

Re: Blackboard Patents - Good news

Linden Labs (the Second Life folks) are pretty easy-going about such things, it seems.

A while back, they explicitly gave permission to a group that was reverse-engineering their protocol, and have recently open-sourced their own client (they say they'll be doing the same for the server soon).

"Some of Sakai's commercial partners and valued members of the open source community will not be protected under this pledge. Furthermore, EDUCAUSE and Sakai worked to gain a pledge that Blackboard would never take legal action for infringement against a college or university using another competing product. While Blackboard ultimately agrees that such actions are not in its best interest from a customer relations viewpoint, it could not agree for reasons related to its existing legal case. Our organizations will remain vigilant on this point as protecting our member institutions is of top priority."

Re: Blackboard Patents - Good news

It's great that Blackboard is formalising their intents with respect to open source software in this way, and I'm very pleased that most institutions using open source will feel able to relax.

However, I remain concerned that a number of bundling and integration scenarios which are permitted under our GPL license are still potentially subject to legal action from Blackboard, which introduces legal and technical complexity for many in our community. Finally, all of this is based on patents which many of us still believe to be invalid, and I expect to see this issue ultimately resolved by the patent re-examination which is now under way by the USPTO.

Re: Blackboard Patents - Good news

IANAL, obviously, but what people say about "Intellectual Property" law usually is that you need to protect it in court to keep it. So, it sounds like Bb "had to" do something about it's patent to keep it. Sounds simplistic an explanation but that's one people keep using.Now, we pretty much all agree that the patents Bb has need to be reassessed. If they really have one on distinguishing teacher and learner roles, that patent is obviously invalid. Still, what FLOSS and "homegrown software" is trying to do isn't to fight Bb through the vagaries of the "IP" legal system but to "do their own thing" and innovate as much as possible in the development process.Though Bb still sounds kind of scary, they'll probably lay low for a while, in terms of actively protecting their patents against FLOSS use. They might still use it against a commercial competitor (by the way, who's left?), and we can understand their right to do so. But, essentially, Bb is now a paper tiger, in terms of learning software patents. They'll never go the GPL way but they won't have any power to crush FLOSS development.I guess what I'm saying is that the FLOSS community should let Bb destroy itself and not worry too much about their empty threats. The announcement is still a victory for FLOSS.

Re: Blackboard Patents - Good news

Well, I'm not worried, not at all. I'm pretty happy and able to sleep well every night (without any sort of little "B"s flying arround in my mind).

But one thing is crystal-clear for me. BlankBoard patent is generic, isn't original, tries to limit the learning process and it's a software patent.

Four simple reasons for criticising it whenever I can. I don't want to see BlankBoard destroyed. More yet, I could affirm that I prefer to have them in the arena (the most alternatives for people, the best for the whole world).

But the patent. Nah. Any attempt to limit freedom, specially in education, must be avoided, criticising and fighting it until complete annihilation.

I only hope that people with the decision in their hands will understand that such type of patents are a great mistake.

But worried, not at all. Just positioned against some, IMO, outgoing player tactics (although I repeat I'd prefer BlankBoard not leaving the e-learning world).

Re: Blackboard Patents - Good news

FYI, I've submitted a brief round up of this month's activity on the campaign against Blackboard at http://blog.epic.co.uk/?p=28 along with links to things people can do to support the campaign against BB's patents, which cannot be repeated enough so I'll put them here too!

E-learning history information for all. Re: Blackboard Patents

I found this information for you. It is a history of Learnlinc, a virtual campus and web conferencing tool. I tried using it back in 1998-2000. I sent you the link and the text of the page to your email. For those who wish to see it, here is the link.

Re: Blackboard Patents

"It is a good thing Uncle Bill does not have a product or combination of products that could be construed to violate the Blackboard patent(s).

What really matters is if a judge will decide to hear a case. It doesn't matter if any LMS decides they don't violate this patent. It only matters if a judge decides to hear the case, and send the claim to (a potentially expensive) trial. Many a corporation have folded in the face of a possible trial, even ones that they knew they could win, just because of the threat of a lawsuit by a powerful corporation.

Re: Blackboard Patents

So basically they feel they patented the "online education portal" script? If that's the case then myspace could sue facebook.com, since it's a similar site in function. It's a shame that an educational platform would care to waste their time with attacking another, as they're both beneficial to students and the world community.